Argument recap: A plea too broad?

Posted Wed, November 3rd, 2010 4:16 pm by Lyle Denniston

DISCLOSURE: Akin Gump represents the petitioner in Staub v. Proctor Hospital, but the author of this post is not involved in the case.

Commentary

Perhaps it is a good idea, in some situations, to “save the best for last.” But, in a Supreme Court argument, that just might be too late. An advocate arguing an important job rights case on Tuesday omitted, until his closing sentences, a narrow but very promising argument that could well have been made early and throughout. Instead of spending the bulk of his time on broad theories of “agency,” the lawyer could have focused directly — as he did at the end — on the one federal statute that is actually at issue, and the policy behind a generous reading of it.

The case before the Court, for an hour’s afternoon argument, was Staub v. Proctor Hospital (09-400), testing when an employer can be held liable for a workplace decision when the claim is that it was made on the basis of a discriminatory motive. The case has implications for a significant number of federal job rights laws, but it actually is about the language of only one of them: the Uniformed Services Employment and Reemployment Rights Act of 1984. That is a civil rights law that forbids employers to make an adverse job decision because an employee has had to take time off to serve in the military reserves or to go on active military duty.

The Court has been interested for some years in the broader question raised by the case, and in fact had previously agreed to decide it, only to have that case settled. It was to be expected, then, that the Court would again agree to hear it. And the petition filed for a fired Illinois hospital X-ray technician, Vincent E. Staub, presented the Court with a very simple statement of the issue, while suggesting that other important laws, too, could be affected. The question was: “In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?”

Staub’s lawyer, University of Washington law professor Eric Schnapper, clearly planned his oral argument to track the thrust of his merits brief: that is, on a theory of “agency,” so that anyone in the chain of a decision to fire or discipline a worker who had acted out of a biased motive could make the employer liable for a violation, even if that one individual did not actually do the final deed. That strategy was designed as a frontal attack on the so-called “cat’s paw theory” used by the Seventh Circuit Court to rule against Staub’s claim of a discriminatory firing — that is, a theory that the firing was illegal only if the final decision-maker, though not personally biased, was strongly influenced by a co-worker who was.

He had barely begun on that theme when Justice Samuel A. Alito, Jr., interrupted: “Well, before we jump to agency law, shouldn’t we take a look at the language of the statute?” It was soon clear that Alito wanted to focus on that, because he was inclined to read it to mean that only the final decision-maker’s action counted, and if that individual was not biased, the employer had no liability. Justice Antonin Scalia seemed similarly inclined.

But, as the Justices pursued that opening line of inquiry, the argument moved back out to a broader inquiry of how to determine whose motivation counted in judging a firing or other workplace action. Schnapper responded to that by returning to principles of agency, on a wider scale. He did seek to apply those principles to the facts of Vincent Staub’s firing, and from time to time he cited sections of the military job rights law, but the argument was still ranging beyond those specifics.

It was apparent that the professor was not making a lot of headway with the argument, and that became very clear when Justice Anthony M. Kennedy told him that he was advocating “sweeping” liability on an employer, almost to the extent of “insurer’s liability” — that is, strict liability no matter what the employer had done to try to avoid violating the law. “He has done everything he can,” Kennedy said, “and he has almost absolute liability.” Schnapper said that was, indeed, his argument, since the law made no exception for “due diligence.”

He summed up his “agency” argument in an exchange with Justice Scalia: “If anyone who played a role in this had an unlawful motive,” that would satisfy the “motivating factor” under the statute at issue. There was no point, while he had his initial turn at the podium, that he discussed the reasons for Congress to enact a law to prevent anti-military “animus” in the workplace.

The Justice Department lawyer, Eric D. Miller, an assistant to the Solicitor General, supported almost all of Schnapper’s argument about how to calculate employer responsibility for a biased motive under the military services law. But the course of argument stayed on the broader themes that Schnapper had introduced.

The Peoria hospital’s lawyer, Roy G. Davis, followed his own merits brief in opening his argument, arguing that the final decision-maker in the case was not biased against Staub’s military service, so “Staub’s case against Proctor Hospital would end right here.” Staub, he added, had actually been given “another bite of the apple” by the Seventh Circuit, because it had applied the “cat’s paw theory” to suggest employer liability of the final decision, though not biased, had been “strongly influenced” by someone who was.

The Justices’ exchanges with Davis went through a series of hypotheticals to test his simple thesis, and the hearing still might have been about any of the several anti-discrimination laws potentially affected by the outcome of Staub’s appeal. The Court’s interest was that broad, perhaps, because it had perhaps agreed to take on this particular case in order to see the implications not just for the military service law, but for the other statutes, as well.

It was apparent, though, that by the time Schnapper would stand up for rebuttal, that at least some of the Justices, and perhaps a majority, was skeptical about the “agency” theory of strict liability he had been pressing. His rebuttal began with further discussions of the facts in the record.

Finally, with almost no time remaining, Schnapper had an exchange with Justice Scalia and turned to Congress’s purpose in passing a law to protect service members when they are in the workplace and not on duty. “The purpose of the statute is to minimize the disadvantages to civilian careers that can result from service in the military,” he said.

He continued, saying that “this USERRA is unique among employment statutes or close to it, because the employer has an economic incentive to break the law. It’s expensive to keep reservists on the books.” In Staub’s case, the professor said, his immediate supervisors objected to him as an employee precisely because it cost them money when he went to drill meetings or was called to active duty.

Justice Alito responded: “Well, do you think that the standard for employer liability is different under this statute than under other federal anti-discrimination statutes? Is that what you were just suggesting?” Schnapper said it was, that “there are particularly compelling textual reasons for the position we are arguing here.” The Court, he said, “could write an opinion that only addressed…USERRA and left those other questions open.”

In a final comment, perhaps the most vivid one of the entire argument, Schnapper said that this particular law’s rights of reemployment and rights against discrimination “play an essential role in the national defense. They safeguard the livelihood of men and women who safeguard the Nation. And Congress wouldn’t have wanted that statute read wrong.”

It was a very powerful closing, and encapsulated what might well have been the single rationale most likely to win for his client whose interests, in fact, were limited solely to his rights under USERRA. In short, it could have been more than concluding oratory.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.